stat. 11 Geo. II. c. 19. s. 15, "where tenant for life dies before, or on the day on which rent is reserved or made payable, upon any demise or lease of lands, &c., which determines on the death of such tenant for life, his personal representative may in an action on the case recover from the under-tenant of such lands, &c., if the tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time the tenant for life lived, of the last year or quarter of a year, or other time in which the said rent was growing due, making all just allowances or a proportional part." A lease for years by a rector having ceased by his death, the succeeding incumbent received from the lessee the rent for the whole year in the course of which the lessor died; held that the executor was entitled to an apportionment. Where a tenant for life with leasing power granted leases from year to year, some by parol and some in writing, but not conformable to the power, and died before the expiration of the year, it was held that the lessee's interest was determined by the death of the lessor, and that the rent was apportionable b. But where a tenant in fee demised lands from year to year and died, having devised the lands for life, and the devisee for life received rent, but did not live long enough to have a right to determine the yearly tenancy; held, that the administrator of the tenant for life was not entitled to an apportionment of the rent. For the tenant for life could not have put an end to the occupation of the sub-tenants, as notices to quit had not been given; and it was better to adhere to the words of the statute than to force constructions o. * Hawkins v. Kelly, 8 Ves. 308. Ex parte Smith, 1 Swans. 337. Symons v. Symons, 6 Madd. 207. A land-tax, quit-rent, &c., is not apportioned as between tenant for life and remainder-man. с Sutton v. Botheroyd v. Woolley, 1 Gale, 66. 1 C. M. & R. 834. SECTION V. THE DECLARATION. Venue. The deed need not be stated. In debt for rent upon a lease founded on privity of estate, as when brought by the assignee or devisee of the lessor or his personal representatives against the assignee of the lessee, the action is local, and the venue must be laid in the county where the estate lies 2. But in debt by the lessor against the lessee or his executor, the action is transitory and the venue may be laid in any county; and so may the venue in debt for use and occupation. The plaintiff need not state any of the particulars of the demise, or shew the local situation of the premises in the declaration. In debt for rent reserved by deed, it is usual, though not necessary, to state the deed in the declaration, unless in the case of a lease of tithes or other incorporeal hereditaments which could not be granted without deed d. In debt for rent on a lease by the lessor, the plaintiff need not set out his title, as the lessee is estopped from disputing it; but Derivative where the action is brought by a party claiming by a derivative title from the lessor, as by the assignee of the reversion, or by the heir of the lessor, or by an executor of a term, or for rent which became due after the death of the testator; the declaration should state the title of the lessor to the demised premises, in order that it may appear that he had such an estate in the reversion as might legally be vested in the plaintiff in the character in which he sued, and legally entitle him to recover the damages claimed in respect of the breaches of covenante. title. So, in debt by a remainder-man for rent reserved upon a lease by the tenant for life, the plaintiff must shew what au a Thrale v. Cornwall, 1 Wils. 165. Patterson v. Scott, Stra. 776. Bord v. Cudmore, Cro. Car. 183. 1 Saund. 241. Egler v. Marsden, 5 Taunt. 25. Davies v. Edwards, 3 M. & S. 380. Wilkins v. Wingate, 6 T. R. 62. King v. Fraser, 6 East, 348. But if the particulars of the demise be stated, they must be proved as stated. Bristow r. Wright, Doug. 665. 1 Saund. 203. 5th ed. d1 Saund. 276. d. 2 Saund. 297. 2 Ch. Pl. 279. See Atty v. Parish, 1 N. R. 109. e 1 Ch. Pl. 363. Com. Dig. Pleader, c. 36. Gilbert, Debt, 410. entry need not be thority the tenant for life had to make the lease 2. In debt for When an rent reserved on a lease for years, it is not necessary to aver an entry or occupation by the lessee; for though he neither averred. enters nor occupies he must pay the rent, it being due by the contract and not by the occupation; but in debt on a lease at will for rent in arrear, the plaintiff must shew an occupation, for the rent being only due in respect thereof, it should appear to the court when the lessee entered and how long he occupied b. Whenever rent is reserved periodically, the declaration should state at what time it became due ; and if the action be for part of a gale due at the end of any particular period, the declaration should state how the remaining part was satisfied, for otherwise the lessee may be exposed to many actions for the same demand d If the declaration profess to set out the terms of the reserv- Variance. ation of rent, it will be a variance to omit the words "except as hereinafter mentioned," referring to a subsequent proviso by which a deduction is to be made if a certain event happen, although that event may not have happened. Where a declaration in debt for rent stated a demise of a messuage, land, and premises, with the appurtenances; the proof was of a demise of a messuage and land, together with the furniture, utensils, and implements: held, that as the rent issued out of the real property and not out of the furniture, it was sufficient for the plaintiff to allege and prove a demise of the real property, and therefore there was no variance f. Where in debt for rent on a lease, by lessor against the assignee of the lessee, the declaration stated that all the estate, &c., of the lessee came to and vested in the defendant. It was in evidence that defendant was assignee of part only of the demised premises: held, a fatal variance 8. 792. In debt for rent against an executor or administrator, if the Against Sands r. Ledger, 2 Ld. Raym. 1 Saund. 202. a. Bellasis v. Burbrick, 1 Salk. 209. Eaton v. Jacques, Doug. 457. Williams r. Bosanquet, 1 B. & B. 238. "Gilbert on Debt, 414. Show. 8. 2 Ch. Pl. 280. d 1 Saund. 201. a. e Vavasour v. Ormrod, 6 B. & C. 430. f Farewell v. Dickenson, 6 B. & C. 251. Curtis v. Spitty, 1 Bing. N. C. 758 1 Hodges, 153, ante, 718. executor or administrator, must be in whole rent has accrued in the lifetime of the lessee, the action must be in the detinet only; and even though the personal rethe detinet. presentative do not enter, he is still chargeable in the detinet, for he is bound to perform all the contracts of the lessee as far as he has assets; but for rent accrued after the death of the lessee the action may be brought either in the debet or detinet if the personal representative enters; for he is chargeable as assignee in respect of the perception of the profits, whether he has assets or not, and if judgment be given against him it is de bonis propriis. And if part of the rent be incurred in the lifetime of the lessee and part after his death, the action may be brought in the detinet only for the whole, but it cannot be brought in the detinet for part and in the debet and detinet for the other part in the same action, for there two different judgments would be necessary b. If the declaration be in the debet and detinet, in a case which ought to be laid in the detinet only, it is demurrable; but not so when it is in the detinet only, in a case which might be in the debet and detinet. If the personal representative enter, he cannot plead plene administravit, but if the land be of less value than the rent, he may plead the special matter and pray judgment whether he shall be charged otherwise than in the detinet only d Detinet for rent against an executor of lessee is transitory, because it is for arrears in the testator's time: but when it is in the debet and detinet for rent accrued in the executor's time, it must be where the land lies; for in this case the executor is charged as assignee on the privity of estate, and not on the privity of contract e. a 1 Saund. 1. Lord Rich v. Frank, Salter v. Cobbold, 3 Lev. 74. 1 610. Id. Wilson v. Hobday, 4 M. & S. 120. d B. N. P. 169. 1 Saund. 1. Billinghurst v. Spearman, 1 Salk. 297. Gilbert, Debt, B. 2. C. 2. Cormel v. Lisset, 2 Lev. 80. SECTION VI. THE PLEADINGS. factum. Non de misit. arrere. in tenemen tis. If the tenancy be created by deed, and the deed is the founda- Non est tion of the action, the general issue is non est factum; but if the tenancy be not created by deed, or if the deed is an inducement only, non demisit is the general issue. All other matters of defence must be specially pleaded. Formerly riens in arrere Riens in might be pleaded in debt, but since the new rules it would be demurrable. If the demise be by indenture, and it is so stated Nil habuit in the declaration, the defendant cannot plead nil habuit in tenementis in an action by the lessor; for he is estopped by the deed from alleging that the plaintiff had no power to demise d. But if the indenture be not alleged in the declaration nil habuit in tenementis is prima facie a good plea, because no estoppel appears upon the record; the plaintiff, however, may reply that the demise was by indenture and rely upon the estoppel; but if he replies that he had a sufficient estate in the premises, he loses the benefit of the estoppel. Nil habuit in tenementis cannot be pleaded in an action for use and occupation, nor in any case by the lessee where he has occupied the premises. Entry and eviction of the whole or part of the premises demised may be pleaded in bar to an action of debt for the rent; for the rent is thereby suspended; but the plea to be sustainable must state an eviction or expulsion of the lessee by the lessor, and a keeping him out of possession until after the rent became due 8. A mere trespass or an illegal ouster by the Entry and eviction. |